Massey's Appeal

Mr. Justice Woodward

delivered the opinion of the court, March 24th 1879.

In Pennsylvania, throughout its history as a province and a state, the rules of the common law regarding the devolution of property described in lapsed devises and bequests have been accepted as in full force. They have been constantly applied and acted on by the courts and by members of the bar. While there have been indications of a belief in the minds of individual judges in some recent cases that the Act of the 8th of April 1833 has modified them, they have never been departed from in any precedent of controlling authority. Under these rules, real estate, the devise of which had lapsed, has been always held to descend to heirs-at-law, and to form no part of a residuary estate created by a testator’s will, except where a special intent to the contrary has been apparent. This principle was taken for granted in Allison v. Kurtz, 2 Watts 185. It is true that the lapse in that case was of part of the residue, but Judge Sergeant, in the opinion, did not advert to that distinction. On the other hand, personal property, where a legacy has lapsed, has with equal uniformity been given to residuary legatees: Woolmer’s Estate, 3 Whart. 477; Nyce’s Estate, 5 W. & S. 254. In Woolmer’s Estate, Judge Kennedy quoted the remark of Sir William Grant, in Leake v. Robinson, 2 Meriv. 392, that “ it must be a very special case, indeed, in which there can be at once a residuary clause and a partial intestacy.”

Neither the integrity nor the authority of these rules has been impaired by the exceptional cases that from time to time have been decided. In Patterson v. Swallow, 8 Wright 490, where residuary devisees were held entitled to take land, the names of the persons designed to he made particular devisees had been omitted in the draft of the will of the testatrix. Blanks left for the insertion of the names had not been filled. It was purely a void, and not a lapsed devise. And in Neff’s Appeal, 2 P. F. Smith 326, where both personal property and land were decided to belong to the next of kin, the lapsed devise and legacy had been of parts of the residuary estate, and thus came within the exception stated in Leake v. Robinson, of “.some part of the residue itself ill-given.”

■ From some expressions in the opinion in Patterson v. Swallow, it is'manifest that the judge who delivered it believed that the Act of 1833 had destroyed the distinction between real and personal property, and that land embraced in a lapsed devise should go to residuary devisees. And from some expressions in the opinion in Yard v. Murray, 5 Norris 113, it might be inferred that it was the design of the court to declare not only that the distinction was obliterated, but that the result of the obliteration had been to cast the real and personal estate alike upon the heirs-at-law. But in each of those cases, the language employed in entering the judgment was aside from any point involved or ruled.

In the consideration of Yard v. Murray, after the argument — and it was carefully and deliberately considered — there was hesitation on the part-of some members of the court to affirm the judgment of the Common Pleas. In the first place, it was-thought that the language of the residuary clause in Miss Loxley’s will was exceptionally comprehensive. The gift was of “ all the rest, residue and remainder” of her “ estate, real, personal and mixed,” of which she should “ die seised, possessed or entitled to.” The opinion of the court upon the effect of the Statute of Wills had been expressed emphatically and without qualification in Patterson v. Swallow, and there was an inclination to accept and adopt that opinion, especially as no case of binding force ■ recognising the contrary doctrine had been decided subsequently to the enactment of the statute. And it was urged that .in this state, where under almost all circumstances the same principles govern the distribution of real and personal estates, symmetry would be given to the legal system by establishing the rule that land, like personal property, should go, in the event of lapse, into the residuary estate.

There were, however, considerations, which were in the end controlling, to be taken into account on the other side, The principles of the common law had been rules of property for generations before 1833, and during a period of almost fifty years after the Statute of Wills was passed, estates had been settled, titles had been acquired and conveyed, and counsel had advised and instructed clients on the theory that they remained rules of property still. The very paucity of precedents was enough to prove the settled and pervading professional opinion that the old rules had been left unchanged. An Act of Assembly would have only prospective operation, and would do no wrong. A departure from the accepted theory of the law by a judicial decision would be fruitful of wide-spread mischief. Besides, in order to reach such a decision, the statutory words would have to be strained. The tenth section of the Act of 1833 declared simply that real estate acquired by a testator after making his will should pass by a general devise. Equivalent words had been so construed in Massachusetts and Maine, as to work out the result contended for in Patterson v. Swallow, while precisely the contrary view of the effect of such words had been taken by the courts of New York. The English Statute of Wills had left nothing for construction. By the third and twenty-fourth sections, the substance of the tenth section of our Act of 1833 was enacted, and the twenty-sixth section declared in terms that a residuary clause should include land described in lapsed and void devises. Upon like grounds an affirmance of the judgment was finally agreed to without dissent.

Eo issue is involved in this appeal except that relating to the personal estate of the testatrix. The opinion of the Orphans’ Court stated the law "with entire accuracy, and their decree might safely be reversed for the reasons contained in that opinion. But it has been thought right that the unanimous judgment of the members of this court on this branch of the law of the Commonwealth should be pronounced. It may be that it would be wise to introduce the principle of the twenty-sixth section of the English statute into our system. But in deciding Yard v. Murray, it was felt that it could only be introduced with safety by the action of the legislature.

The decree of the Orphans’ Court is reversed, and it is now adjudged and decreed that the decree of that court, made on the 4th of November 1876, be reinstated and restored, with all the force and effect the same would have if no part of it had been at any time annulled, subject, however, to the exception that the costs of this appeal be paid out of the fund for distribution.